Andhra Pradesh High Court - Amravati

Heard Learned Counsel For The vs Unknown on 30 March, 2022

     THE HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA

                       M.A.C.M.A.No.3795 of 2014

JUDGMENT:

Heard learned counsel for the appellant and learned counsel

for the respondents.

2. The present appeal is filed by the claimant against the award

and decree dated 12.01.2011 passed in M.V.O.P.No.531 of 2004 on

the file of the I Additional District Judge-cum-Motor Accidents

Claims Tribunal, Nellore (for short, 'the Tribunal',) seeking

enhancement of award amount of Rs.1,75,000/- on the ground

that the amount, which was awarded, is against the facts and

circumstances of the case and law as held by the Hon'ble Apex

Court as well as the High Courts.

3. It is the case of the appellant that he filed M.V.O.P.No.531 of

2004, under Section 166 of the Motor Vehicles Act, claiming

compensation of Rs.3,50,000/- for the injuries caused to him in

the motor accident that took place on 18.06.2003 at 1:00 P.M.

near Srilanka Colony, Kothuru, Nellore Rural Mandal on account

of the rash and negligent driving of the driver of Tractor bearing

No.AP-21-D-3253 owned by the respondents herein. The appellant

herein is the resident of Nellore Town and aged about 32 years and

doing a stone metal contractor. On the date of accident i.e., on

18.06.2003 he is earning Rs.10,000/- per month out of his

business as such, he is entitled for compensation, which was

claimed by him in original petition.

4. Learned counsel for the appellant contended that the

Tribunal is erred in awarding meagre amount of Rs.1,75,000/-

even though there is an ample evidence was placed before the

Tribunal and appellant had suffered with permanent disability and

much of medical expenses, which were incurred by him for

treatment, was not considered properly. He further contended that

the award passed by the Tribunal cannot be sustained in view of

the grounds and reasons stated herein below.

5. The Tribunal erred in partly allowing the claim of the

appellant by not considering/overlooking the permanent disability

of the appellant herein. As per the evidence of the doctors, who

treated the appellant, specifically stated that the appellant is

suffered with permanent disability to an extent of 35% to 40%. In

spite of reunion of fractured bone, there was shortening of left leg

by 1 ½ inch, deformity was caused thereby he will have limping for

his lifetime, it would be difficult for him to squat on the floor or to

walk long distance. As the bone was fractured into multiple

pieces, the broken pieces may not unite in ordinary way and due to

shortening of the leg and other complications, he suffered

permanent disability at the rate of 35% to 40%. But contrary to

the said expert evidence and material, the Tribunal erroneously

came to a conclusion that the disability may be to the extent of

30% only, which was finalized as one of the aspect at issue No.2 of

the award. The other aspect at issue No.1 is that even though the

appellant/claimant, being a stone metal contractor, is earning

Rs.10,000/- per month by way of commission, the Tribunal

erroneously observed and concluded that in the absence of any

figures with regard to how much quality he was purchasing and at

what rate he was supplying to his customers and what is the

margin of his earnings as a commission agent, he was not a big

contractor and he might be earning about Rs.4,000/- per month

only. He further contended that the above conclusion of the

Tribunal about earning of the appellant as Rs.4,000/- is not

correct i.e., since by getting Rs.4,000/- per month he cannot

maintain two wheeler vehicle and he cannot maintain his family

also. At any angle, his income should be more than the amount

fixed by the Tribunal. He also contended that in view of the said

rash and negligent driving of the driver of the Tractor, the pillion

rider one Sivanarayana succumbed to death on the spot of the

accident and the appellant suffered grievous injuries and he was

admitted in hospital as inpatient for a period of three months.

Thereafter, as outpatient he took treatment for a further period of

three months and for that he spent more than Rs.1,50,000/-. But,

the Tribunal without considering about the treatment for long

period awarded an amount of Rs.54,000/- towards medical

expenses erroneously and the appellant is entitled to reimburse

the amount, which was spent by him is Rs.1,50,000/-.

6. Therefore, learned counsel for the appellant prayed that the

appellant is entitled for enhancement of compensation to the

extent of his original claim of Rs.3,50,000/- in view of the grounds

and reasons stated above.

7. On the other hand, learned counsel for the respondents

submitted that the Tribunal considered all the aspects what was

put forth before it and the Tribunal considered the monthly income

of the appellant as Rs.4,000/- in the absence of any documentary

evidence to show that the appellant is earning Rs.10,000/- per

month. Similarly, the appellant did not file any evidence to

substantiate his claim of Rs.1,50,000/- towards medical expenses

incurred as inpatient or outpatient at Jaya Bharath Hospital,

Nellore. The Tribunal also rightly concluded that the permanent

disability of the appellant at the rate of 30% rather than 35% to

40% as assessed by the private doctors, who treated the appellant.

Therefore, the award passed by the Tribunal is sustainable and

cannot be interfered with by this Court.

8. There are substantial grounds raised by the appellant herein

in respect of arriving monthly income at Rs.4,000/- even though

he is earning Rs.10,000/- per month. After viewing the cost of

living for a family, who are staying at Nellore, which is urban area,

without getting Rs.10,000/- a family cannot be sustained as such

the finding of the Tribunal arriving the monthly income of

Rs.4,000/- is not correct and it must be near to Rs.10,000/-.

Therefore, conservatively it must be taken at Rs.8,000/- per

month. Therefore, monthly income of the appellant is at

Rs.8,000/-.

9. In regarding the other contention that the nature of accident

is a very serious in nature since the pillion rider is succumbed to

death on the spot itself and the injuries received by the appellant is

grievous in nature, as per the evidence of the doctors, who treated

the appellant for a period of three months, the amount awarded by

the Tribunal is very low while comparing to the amount sought by

the appellant towards medical expenses. Therefore, the amount

towards medical expenditure should be allowed 50% of the amount

claimed by the appellant i.e., Rs.75,000/- out of Rs.1,50,000/- due

to he underwent long period of treatment i.e., six months.

10. The another substantial ground raised by the appellant is

that even though the doctors adduced evidence before the Tribunal

and stated that the permanent disability suffered by the appellant

at 35% to 40%, the Tribunal erroneously averred to an extent of

30%, which is against the evidence adduced by the doctors. As

such, the amount awarded on account of permanent disability

should be enhanced from 30% to 35%. Therefore, the appellant

will be entitled to the total compensation, which is as follows:

      Pain and suffering                        Rs.37,000/-

      Loss of Income                            Rs.48,000/-

      Medical Expenses                          Rs.75,000/-

      On    account    of  permanent Rs.70,000/-
      disability, the loss of amount
      arrived at
                Total:                          Rs.2,30,000/-

11. Thus, in all, the appellant is entitled to a total compensation

of Rs.2,30,000/- with interest at the rate of 9% per annum from

the date of petition till the date of realisation.

12. Accordingly, the Appeal is partly allowed modifying the

award and decree dated 12.01.2011 passed in M.V.O.P.No.531 of

2004 on the file of the I Additional District Judge-cum-Motor

Accidents Claims Tribunal, Nellore, by enhancing the

compensation from Rs.1,75,000/- to Rs.2,30,000/- with interest at

the rate of 9% per annum from the date of petition till the date of

realisation and both the respondents are jointly and severally liable

to pay the compensation. There shall be no order as to costs.

Consequently, Miscellaneous Petitions, if any, pending in